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ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR), as well as employers, Human Resources and Security professionals, and law firms who require information on pre-employment screening, safe hiring, the FCRA and legal compliance. If this was sent in error, you can be removed from this mailing by using the â€œremove” feature at the end of the newsletter.

Increasingly, American firms find they need to conduct background screening on individuals who have spent time in other countries. U.S. government statistics show that 11.5 percent of the population consists of immigrants. There are also large numbers of workers from other countries here on temporary work visas. In addition, many U.S. citizens have spent time studying or working abroad.

What these figures tell employers is that only performing employment screening within the U.S. is probably not enough. With the mobility of workers across international borders, many employers find they need to obtain information from outside of the United States on such matters as criminal records, past employment, and educational accomplishments. These checks are generally described as â€œinternational background checks.â€

A need for an international background check occurs in these situations:

An applicant was born abroad and is either coming directly to the U.S. from another country or has not been in the U.S. long enough to rely solely upon checking American references and records.

The applicant spent time in another country and the employer wants to obtain data for that time period.

An American company is hiring an individual in another country to work in that other country (for a position such as outside sales or marketing representative, etc.).

Because of the perceived difficulties in performing international employment screening, some employers have not attempted to verify international credentials. However, the mere fact that information may be more difficult or expensive to obtain from outside of the U.S. does not relieve an employer from the due diligence obligations associated with hiring. An employer cannot simply take a position that it is harder to exercise due diligence because the research is international.

Nor can an employer simply assume that the U.S. government has performed a background check if the worker was issued a visa. After the events of 9/11, the U.S. Government has increased checks on foreign visitors and workers by checking names against government â€œwatch lists.â€ However, these checks are primarily aimed at keeping terrorists and international fugitives from entering the U.S. These government checks are not necessarily aimed at lesser convictions that may be relevant to job performance, or verification of past employment or education credentials.

Here is the bottom line. If an employer hires someone without verifying their international background and the employer is sued for negligent hiring when it turns out that a due diligence check would have uncovered important facts, what is the defense? If a victim has been hurt or injured, then the employerâ€™s testimony will sound very hollow when they did nothing, believing it was too difficult or they did not know how. ESR statistics show that discrepancies in international employment and education checks can occur over 20% of the time.

Although international searches come with their own unique challenges and obstacles, employers have a number of options when it comes to exercising due diligence. However, employers also need to be concerned with international data and privacy protections laws.

Employers have become very aware of the high costs of compensation claims. The loss to American businesses from both fraudulent claims and re-injury causes many employers to want to know whether a job applicant has a history of filing workersâ€™ compensation claims.

At the same time, the Federal Americans with Disabilities Act (ADA), as well as numerous state laws, seek to protect job seekers from discrimination in hiring as a result of filing valid claims. The ADA also seeks to prevent the discrimination against workers who, although suffering from a disability, are nevertheless able to perform essential job functions as long as there are reasonable accommodations.

Before the ADA was introduced in 1990, employers had little legal limitations when it came to asking job applicants about their medical history or past workersâ€™ compensation claims. Now there are numerous legal restrictions that must be observed closely. The bottom line is that an employer cannot request workersâ€™ compensation records in order to have a policy of not hiring anyone who has made a claim. It can be discriminatory to penalize a person who has exercised a lawful right and filed a valid claim.

Some Pointers for Workersâ€™ Compensation Records and Hiring

There are wide variations between the states in the availability of these records. In a few states, the records are not available to the public. In other states, it can take two to three weeks to obtain a record. In some states, there are special requirements before obtaining the records, such as a notarized release.

Not all claims are necessarily available. In California, for example, an employer would generally only receive claims that went to the Workersâ€™ Compensation Appeals Board.

Under the ADA, an employer may not inquire about an applicantâ€™s medical condition or past workersâ€™ compensation claims until a conditional job offer has been extended.

Any questioning in a job interview must be restricted to whether the person can perform the essential job functions with or without reasonable accommodation.

Only after a conditional job offer has been extended may an employer inquire about past medical history, require a medical exam, or inquire about workersâ€™ compensation claims.

If a history of filing workersâ€™ compensation claims is found, then the offer may only be rescinded under very limited circumstances, such as:

The applicant has lied about a workersâ€™ compensation history or medical condition, or hid some past employment in order to hide a claim;

The applicant has a history of filing false claims;

The past claims demonstrate the applicant is a safety or health threat to himself or others in the opinion of a medical expert;

The past claims demonstrate the applicant is unable to perform the essential functions of the job even with a reasonable accommodation.

Bottom-line: Employers are well-advised to contact a labor lawyer before seeking to obtain workersâ€™ compensation records as part of the hiring process. A labor law expert can assist an employer in preparing company policies, job descriptions, and forms and procedures necessary to comply with the ADA and applicable state laws.

3. Background Screening Association to Hold Annual Meeting

The National Association of Professional Background Screeners (NAPBS), the national professional association for the background screening industry, will be holding their third annual national conference in Nashville, Tennessee on April 2-5, 2006.

According to its mission statement:

The National Association of Professional Background Screeners (NAPBS) exists to promote ethical business practices, promote compliance with the Fair Credit Reporting Act and foster awareness of issues related to consumer protection and privacy rights within the background screening industry.

The Association provides relevant programs and training aimed at empowering members to better serve clients and to maintain standards of excellence in the background screening industry.

The Association is active in public affairs and provides a unified voice on behalf of members to local, state and national lawmakers about issues impacting the background screening industry.

ESR is pleased to have been a founding member of NAPBS. ESR President Les Rosen served as the chairperson of the steering committee that founded NAPBS and served as the first co-chairman in 2004.

ESR is pleased to announce that attorney Vince Pascarella has joined the ESR team as Director of Legal Compliance. Vince has spent nearly nine years in the background screening industry specializing in legal compliance issues and pre-employment screening. He also spent two years as co-chair of the Best Practices Committee of the National Association of Professional Background Screeners (NAPBS). That committee operates to establish and promote best industry practices and inform members regarding compliance with applicable laws.

ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource and security professionals, and anyone responsible for Risk Management and Due Diligence in hiring.

The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work. Features of this course include:

Convenient 24/7/365 availability through any online connection

21 self-paced lessons on Safe Hiring practices

A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes

Review quizzes after each lesson featuring more than 300 questions about Safe Hiring

Easy access to useful Safe Hiring web-links

Sample Safe Hiring forms to help guide your own form development

Industry certification in Safe Hiring

Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)

Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective Safe Hiring program including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The course is offered at no charge to ESR clients.

ESR wrote the book on background checks! â€“ The Safe Hiring Manual, now in its third printing, is available from BRB Publications.Click here to read more.Thedefinitive book on pre-employment screening, â€œThe Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,â€ has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.

ESR is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.